Opinion
04 Civ. 6534 (RCC) (JCF).
June 15, 2005
REPORT AND RECOMMENDATION
Deborah Cardona brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging her conviction upon a guilty plea for attempted sale of narcotics and bail jumping. Ms. Cardona contends (1) that her guilty plea was coerced by fraud and (2) that she received ineffective assistance of counsel. The respondent opposes the petition on the merits and also argues that the petition should be dismissed as time-barred by the one-year period of limitation imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA"). For the reasons that follow, I recommend that the petition be dismissed as time-barred.
Background
On August 21, 2001, Deborah Cardona and her co-defendant Raymond Reyes were indicted by a grand jury for the possession and sale of crack cocaine in front of 178 East 101st Street in Manhattan on May 3, 2000. (Tr. at 11-12). Thereafter, Ms. Cardona was also indicted for bail jumping after she failed to appear when due in court on October 24, 2001. She was subsequently re-arrested in Florida and extradited to New York on February 7, 2002. (Tr. at 15-16; Memorandum of Law in Opposition to Petition for a Writ of Habeas Corpus dated Feb. 15, 2005 ("Resp. Memo."), at 3-4).
"Tr." refers to the transcript of Ms. Cardona's plea proceeding held on April 2, 2002, attached as Exh. D to the Petition for Writ of Habeas Corpus ("Pet.") at 79-98.
On April 2, 2002, the petitioner pled guilty and was convicted of Attempted Criminal Sale of a Controlled Substance in the Third Degree in violation of New York Penal Law §§ 110 and 220.39 and Bail Jumping in the First Degree in violation of Penal Law § 215.57. (Tr. at 3, 18). On April 26, 2002, pursuant to a plea agreement, Justice Bernard Fried sentenced the petitioner, as a second felony offender, to consecutive indeterminate sentences of three to six years on the narcotics conviction and two to four years on the bail jumping conviction. (Sentencing Tr. at 3). The petitioner did not file an appeal because she waived her right to appeal the convictions when she pled guilty. (Tr. at 18-19).
"Sentencing Tr." refers to the transcript of Ms. Cardona's sentencing on April 26, 2002, attached as Exh. D to Pet. at 130-33.
On December 11, 2002, however, Ms. Cardona filed a motion to vacate her conviction pursuant to New York Criminal Procedure Law ("CPL") § 440.10. Ms. Cardona alleged that (1) her guilty plea was coerced; (2) her plea was not knowing, voluntary, and intelligent; (3) she had been denied counsel at a critical stage of the proceeding; (4) she received ineffective assistance of counsel; and (5) the indictment was void because multiple counts charged her with the same crime. (Notice of Motion dated Dec. 11, 2002 ("Motion"), attached as Exh. D to the Declaration of Alyson J. Gill dated Feb. 15, 2005 ("Gill Decl."), at 1). On March 20, 2003, Justice Fried denied the motion to vacate. (Pet., Exh. D at 119, 129). Thereafter, Ms. Cardona filed a motion for reconsideration on May 1, 2003 (Pet., Exh. D at 11), which Justice Fried denied on May 21, 2003. (Pet., Exh. D at 10). On July 1, 2003, the petitioner filed a second motion for reconsideration, which Justice Fried denied on July 25, 2003. (Pet., Exh. D at 3). In an order signed on February 10, 2004 and entered on February 17, 2004, the Appellate Division, First Department denied leave to appeal. (Pet., Exh. A). The Court of Appeals did so as well on March 17, 2004. (Pet., Exh. B).
On August 4, 2004, Ms. Cardona executed the instant habeas corpus petition, and it was filed in this Court on August 12, 2004.
Discussion
A. AEDPA Statute of Limitations
The respondent argues that the petitioner's habeas corpus petition is time-barred under 28 U.S.C. § 2244(d)(1). That provision imposes a one-year period of limitation for habeas corpus petitions that runs from the latest of:
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing and application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.28 U.S.C. § 2244(d)(1).
Ms. Cardona's conviction became final on May 26, 2002 upon her failure to appeal within thirty days of being sentenced. See CPL § 460.10(1)(a) (allowing a defendant thirty days in which to appeal a conviction); see also Bethea v. Girdich, 293 F.3d 577, 578 (2d Cir. 2002) (considering petitioner's conviction final upon expiration of time for filing an appeal). As a result, she had until May 26, 2003 to file her petition. Pursuant to the "prison mailbox rule", she is deemed to have filed the instant petition on August 4, 2004. See Houston v. Lack, 487 U.S. 266, 270 (1988) (holding pro se petitioner's notice of appeal filed upon delivery to prison authorities for forwarding to court clerk); Noble v. Kelly, 246 F.3d 93, 97 (2d Cir. 2001) (extending prison mailbox rule to federal habeas corpus petitions).
The petitioner's assertion that the period of limitation does not begin to run until all post-conviction motions have been determined is incorrect. (Petitioner's Objection to Respondent's Opposition to Petition for Writ of Habeas Corpus dated March 11, 2005 ("Pet. Memo."), at 3). The filing of a post-conviction motion does not reset the date from which the one-year statute of limitations begins to run. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000); Leake v. Senkowski, 274 F. Supp. 2d 588, 590 (S.D.N.Y. 2003). Rather, the AEDPA provides that the period of limitation shall be tolled while a "properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2).
A post-conviction motion is considered pending "from the time it is first filed until finally disposed of and further appellate review is unavailable under the particular state's procedures."Hizbullahankhamon v. Walker, 255 F.3d 65, 70 (2d Cir. 2001) (quoting Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir. 1999),aff'd, 531 U.S. 4 (2000)). The Second Circuit has noted that the tolling provision under 28 U.S.C. § 2244(d)(2) "complements the § 2254(c) exhaustion requirement by tolling the limitations period on federal habeas petitions while an appellant pursues state-court remedies." Bennett, 199 F.3d at 119. Thus, a petitioner has exhausted state court remedies and a post-conviction motion ceases to be pending when further appellate review is unavailable.
Accordingly, the limitations period in this case ran for 198 days from May 26, 2002 until December 11, 2002, the date that Ms. Cardona filed her CPL § 440.10 motion to vacate her conviction. The respondent contends that the motion to vacate was not filed until February 28, 2003 and that the limitations period thus continued to run until that date. (Resp. Memo. at 4). This calculation is plainly incorrect, however, as demonstrated by the fact that the motion is dated December 11, 2002 on its face. (Motion at 2). Moreover, on January 21, 2003, the respondent filed papers in opposition the petitioner's motion to vacate, indicating that the motion must have been filed before that date. (Gill Decl., Exh. E). Thus, the limitations period was tolled from December 11, 2002 through February 17, 2004, the date on which the Appellate Division denied the petitioner's appeal.See Johnson v. Girdich, 03 Civ. 5086, 2005 WL 427576, at *4-5 (S.D.N.Y. Feb. 23, 2005) (tolling period ended on date order denying motion to vacate was entered); Colon v. New York, 01 Civ. 7737, 2002 WL 1380000, at *1-2 (S.D.N.Y. June 27, 2002) (same).
Ms. Cardona's motion was signed and notarized on December 11, 2002, but it was not received by the Supreme Court of New York until December 17, 2002. Although New York State has not adopted the prison mailbox rule, federal courts in this district apply the rule for purposes of the AEDPA. See Catlett v. Greiner, 01 Civ. 2548, 2001 WL 1267194, at *11-12 (S.D.N.Y. Oct. 23, 2001). Accordingly, Ms. Cardona's motion is deemed to have been filed on December 11, 2002, presumably the date on which she handed it to prison officials for forwarding to the court.
Although Ms. Cardona further appealed to the New York Court of Appeals, leave to appeal to the Court of Appeals is unavailable under CPL § 450.90(1). Where a petitioner seeks an appeal to which she has no right, the period during which that application is pending does not continue to toll the limitations period.See Hizbullahankamon, 255 F.3d at 70. Thus, the limitations period did not toll after the Appellate Division's denial of the appeal on February 17, 2004.
In addition, where a petitioner seeks collateral post-conviction relief in state court, the ninety-day period during which she may seek a writ of certiorari from the United States Supreme Court is excluded from the tolling period. See Smaldone v. Senkowski, 273 F.3d 133, 135-36 (2d Cir. 2001).
Pursuant to Rule 6(a) of the Federal Rules of Civil Procedure, the limitations period began to run again on February 18, 2004, the day after the Appellate Division denied Ms. Cardona's motion. An additional 169 days then elapsed until August 4, 2004, the date of Ms. Cardona's current habeas petition. As calculated above, the limitations period had already run for 198 days between the date when Ms. Cardona's conviction became final and the date that she filed her motion to vacate. Excluding the time tolled during the pendency of that motion, the petition was filed a total of 367 days after May 26, 2002. Thus, Ms. Cardona was two days late in filing her petition for writ of habeas corpus and it is consequently time-barred.
B. Equitable Tolling
Although Ms. Cardona asserts that her petition was timely filed, she also argues that she is entitled to equitable tolling because the assistance she received from her counsel at sentencing was ineffective. She asserts that this attorney "was apparently not able (or unwilling) to discern that the prosecutor had stacked bogus charges on the indictment in order to extort a guilty plea." (Pet. Memo. at 4).
Because the Second Circuit has construed the limitations period set out in 28 U.S.C. § 2244(d)(2) as a statute of limitations rather than as a jurisdictional bar, a court may equitably toll this period if "rare and exceptional circumstances" prevent a petitioner from filing promptly.Smith, 208 F.3d at 17; see also Johnson v. Nyack Hospital, 86 F.3d 8, 12 (2d Cir. 1996) (noting that limitations period can be equitably tolled as "`a matter of fairness' where a plaintiff has been `prevented in some extraordinary way from exercising his rights'") (citations omitted).
To qualify for equitable tolling, a petitioner must first establish that she faced "rare and extraordinary circumstances" and then must show that these circumstances prevented her from filing her petition. See Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000). This requires that a petitioner demonstrate a "causal relationship between the extraordinary circumstances on which the claim for tolling rests and the lateness of [her] filing." Id. Additionally, a petitioner must prove that she acted with "reasonable diligence throughout the period [s]he seeks to toll." Doe v. Menefee, 391 F.3d 147, 159 (2d Cir. 2004) (quoting Smith, 208 F.3d at 17). Even where circumstances are sufficiently extraordinary to justify equitable tolling, a petitioner's failure to use reasonable diligence to pursue her claim destroys the causal link between the extraordinary circumstances and the lateness of the petition. See Valverde, 224 F.3d at 134. Thus, extraordinary circumstances did not "prevent" the timely filing of a petition where the petitioner could have filed within the limitations period, but failed to do so. See id.
Equitable tolling has been granted only in the most compelling circumstances. See id. at 133 (confiscation of petitioner's draft petition and all related legal papers days before filing deadline warranted equitable tolling of limitations period);Baldayaque v. United States, 338 F.3d 145, 152 (2d Cir. 2003) (equitable tolling justified where petitioner's attorney disregarded specific direction to file habeas petition, told petitioner's wife that it was "too late" to file when fourteen months remained until AEDPA deadline, did no legal research while representing petitioner, and made no effort to locate petitioner after a single, unsuccessful attempt). While some attorney conduct may be so outrageous and incompetent as to warrant equitable tolling, ordinary errors made by counsel, even where they contribute to a petitioner's failure to meet a filing deadline, do not justify equitable tolling of the limitations period. See Smaldone, 273 F.3d at 135 (rejecting petitioner's request for equitable tolling where his attorney failed to file within the limitations period because he believed that pending post-conviction motions reset, rather than tolled, AEDPA's period of limitation). Likewise, neither the problems related to being incarcerated nor a petitioner's pro se status justify equitable tolling of the limitations period. See Baldayaque, 338 F.3d at 152; Smith, 308 F.3d at 18.
Ms. Cardona's argument that she received ineffective assistance of counsel at her sentencing does not provide a basis for granting equitable tolling. Given that she filed both her motion to vacate and her petition pro se, there is no evidence that her attorney's failure to provide effective assistance at her sentencing, even if proven, prevented her from filing the instant petition on time. Ms. Cardona does not explain why she waited nearly eight months from the time she was sentenced to file her motion to vacate, nor does she explain why she allowed an additional six months to elapse after the denial of that motion by the Appellate Division before she filed the instant petition. As a result, equitable tolling of the limitations period is not justified in this case.
Conclusion
For the reasons set forth above, I recommend that Ms. Cardona's petition for a writ of habeas corpus be dismissed as time-barred. Pursuant to 28 U.S.C. § 636(b) (1) and Rules 72, 6(a), and 6(e) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Richard C. Casey, Room 1350, and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.